Shevuos Daf 44 חג השבועות דַף 44

Rebbe Eliezer says that a lender who loses the משכון can still collect his loan. Rebbe Akiva holds the borrower can say, “Your loan was based on the משכון; אבד המשכון אבדו מעותיך – since the משכון was lost, your money was lost.” After suggesting their dispute is about Shmuel’s principle (that a משכון worth less than the debt is considered payment for the entire debt if lost), the Gemara then says they are discussing a משכון equal in value to the debt, and argue about Rebbe Yitzchak’s principle. Rebbe Yitzchak darshened: "ולך תהיה צדקה" – and for you it will be a charitable act (when you return the משכון as needed). אם אינו קונה משכון צדקה מנין לו – If he does not acquire the משכון, why would returning it be a charitable act? מכאן לבעל חוב שקונה משכון – From here we see that a creditor acquires a משכון. Accordingly, the lender would suffer the loss if the משכון is lost, and this is the machlokes Tannaim.

However, the Gemara objects that Rebbe Yitzchak’s principle was never said if משכנו בשעת הלואה – he took the משכון at the time of the loan; the principle only applies to a משכון taken later for payment.

A Baraisa teaches that if one lends money with a משכון, and שמיטה arrived, Rabban Shimon ben Gamliel says: אף על פי שאינו שוה אלא פלגא– even though [the משכון] is only worth half of the loan, shemittah does not cancel the loan (the prohibition to collect a loan after shemittah is "לא יגוש" – do not press, and “pressing” for payment is unnecessary when he has a משכון). Rebbe Yehudah HaNasi says that if the משכון is worth the full value of the loan, the loan is not canceled, otherwise, it is canceled.

The Gemara assumes that Rabban Shimon ben Gamliel means that the משכון prevents cancelation of the entire loan, although it is only half the loan’s value, and Rebbe Yehudah holds it can only prevent cancelation equal to its value. Thus, they are arguing about Shmuel’s principle. However, the Gemara concludes that Rabban Shimon means the משכון only prevents cancelation כנגדו – equal to its value, and Rebbe Yehudah holds such a משכון does not prevent cancelation at all. Its entire purpose is לזכרון דברים בעלמא – as a mere reminder of the loan.

The seventh Perek begins: כל הנשבעין שבתורה נשבעין ולא משלמין – All those who swear מדאורייתא swear and do not pay (i.e., the defendant swears to avoid paying). The Gemara derives this from "ולקח בעליו ולא ישלם" – its owner shall accept (the shevuah), and [the שומר] shall not pay, teaching: מי שעליו לשלם לו שבועה – the one who is potentially responsible to pay is the one with the shevuah obligation (to avoid paying).

The Mishnah continues: ואלו נשבעין ונוטלין – But these swear and collect, based on a Rabbinic decree: השכיר – a hired worker, והנגזל – a robbery victim, והנחבל – an assault victim, ושכנגדו חשוד על השבועה – one whose opposing litigant is suspect about swearing falsely, וחנוני על פנקסו – and a storekeeper regarding his ledger. The Mishnah explains that if a hired worker claims his wages, and the employer says he paid, the worker can swear and collect payment. A robbery victim can swear and collect the amount he claims to have been robbed, and an assault victim can swear and collect damages he claims to have suffered. Each of these cases is fully explained in the Gemara. Rebbe Yehudah holds that the תובע can only swear and collect in these cases if the נתבע admitted partially to the obligation.